You don't have to be a fan of the current president, or of the vindictive way in which he wields power, to recognize that he raises valid concerns about the FBI's investigation into his presidential campaign's involvement with Russian interference in the 2016 election. President Donald Trump may brandish the Department of Justice (DOJ) like a bludgeon, but he does so against an FBI and intelligence community that have powerful weapons of their own and a history of putting them to sketchy use.
"Justice Department officials have shifted an administrative review of the Russia investigation closely overseen by Attorney General William P. Barr to a criminal inquiry," The New York Times reports. "The move gives the prosecutor running it, John H. Durham, the power to subpoena for witness testimony and documents, to convene a grand jury and to file criminal charges."
Yes, this means that the Justice Department is criminally investigating its own role in another investigation.
This investigation of an investigation is widely portrayed as a blatant political move by the Trump administration to discredit the work behind the Mueller Report and to retaliate against officials who participated in its creation. Honestly, Trump's frantic search for allies foreign and domestic on the matter makes that portrayal pretty easy, though it doesn't cover the full picture. In this scenario, the FBI is a tribune of the people, battling valiantly against the usurper in the White House.
But Durham's participation casts doubt on that portrayal, given that he is "a widely respected and veteran prosecutor who has investigated C.I.A. torture and broken up Mafia rings," as the Times acknowledges. Having also exposed misconduct within the FBI in the past, and sent a corrupt senior agent to prison, he would also seem well-suited for looking into FBI actions partially based on CIA information.
Also casting doubt on that white hats vs. black hats take on the Trump administration's struggle with the FBI is the fact that the federal law enforcement agency has always been a lousy candidate for people's tribune. It's long been fingered in efforts to muzzle grassroots dissidents, and has repeatedly involved itself in political shenanigans.
"The FBI…has placed more emphasis on domestic dissent than on organized crime and, according to some, let its efforts against foreign spies suffer because of the amount of time spent checking up on American protest groups," the Senate's Church Committee complained in 1976. "The FBI developed new covert programs for disrupting and discrediting domestic political groups, using the techniques originally applied to Communists," that report also noted.
In this case, the techniques used by the FBI against Trump and friends were originally developed for foreign intelligence and anti-terrorist operations.
"The FBI told a secret federal surveillance court in 2016 that it believed Carter Page, a onetime foreign policy aide to President Donald Trump's campaign, 'has been collaborating and conspiring with the Russian government' in its efforts to interfere in the presidential election," USA Today reported last year.
Ironically created as a check on domestic surveillance after the Church Committee report, and then altered by the fear-fueled Patriot Act after the 9/11 terrorist attack, the Foreign Intelligence Surveillance (FISA) Court is now seen as a poster child of the surveillance state most recently and dramatically unmasked by Edward Snowden.
"The Foreign Intelligence Surveillance (FISA) Court is no longer serving its constitutional function of providing a check on the executive branch's ability to obtain Americans' private communications," former Foreign Intelligence Surveillance Court participant and U.S. District Court Judge James Robertson wrote in 2015. "Dramatic shifts in technology and law have changed the role of the FISA Court since its creation in 1978—from reviewing government applications to collect communications in specific cases, to issuing blanket approvals of sweeping data collection programs affecting millions of Americans."
Those "sweeping data collection programs" former CIA officer and NSA contractor Snowden reveals in his new book, Permanent Record, make it "technologically feasible for a single government to collect all the world's digital communications, store them for ages, and search through them at will."
That capability makes it possible for the intelligence community and its allies in law enforcement to delve through endless records looking for something to use against anybody who annoys the wrong people. And don't we all have something in our private communications?
President Trump claims he's that "anybody" who has run up against a deep state conspiracy by long-time government employees who actively oppose his elected administration. It's a self-serving appeal to conspiracy theories by a particularly clumsy politician who seems to excel at making his own problems. But, yes, he does have a point.
"Of course, nowhere do the people actually rule," philosopher Karl Popper, author of The Open Society and Its Enemies, pointed out in 1988. "It is governments that rule (and, unfortunately, also bureaucrats, our civil servants—or our uncivil masters, as Winston Churchill called them—whom it is difficult, if not impossible, to make accountable for their actions)."
And our "uncivil masters" do have their own agendas that may be good, bad, or indifferent—and may certainly run contrary to the interests of other factions, or of the people over whom they reign.
"It had become clear, to me at least, that the repeated evocations of terror by the political class were not a response to any specific threat or concern but a cynical attempt to turn terror into a permanent danger that required permanent vigilance enforced by unquestionable authority," Snowden wrote in his book of the arguments fueling the growth of intelligence-state apparatus, such as the FISA Court that authorized a wiretap on Page.
None of this should be taken to mean that Trump is the white hat in the battle against black-hat FBI and intelligence community officials. There is plenty to dislike in Trump's conduct during his campaign, his behavior in office, his use and abuse of power, and his rallying of loyalists against out-groups.
But even if they unseat a president opposed by many Americans, the FBI and the intelligence community are not the heroes you're looking for. They control frightening and secretive powers, and all too often act to advance agendas of their own. The FBI may take down a politician you dislike this year, only to turn its weapons against you in the future.